On May 1, 2012, the U.S. Court of Appeals for the Second Circuit issued a decision in Akinsade v. Holder, No. 10-062-ag, 2012 U.S. App. LEXIS 8835 (2d Cir. May 1, 2012). The Court granted our petition for review and vacated the BIA’s decision finding our client to be an aggravated felon and ordering him removed to Nigeria. In a unanimous opinion, the Second Circuit held that our client’s conviction for embezzlement by bank employee in violation of 18 U.S.C. §656 did not qualify as an aggravated felony “offense involving fraud or deceit” as defined in INA §101(a)(43)(M)(i), because Mr. Akinsade never “actually and necessarily pleaded” to facts sufficient to establish that he committed the crime with a specific intent to defraud. Because 18 U.S.C. §656 is a divisible statute — and guilt can be established by proving either a specific intent to defraud or a specific intent to injure the employing bank — the Court applied a modified categorical approach and examined the underlying conviction record, including the transcript of plea colloquy. Although Mr. Akinsade accepted responsibility and admitted guilt during his Rule 11 plea hearing, the Second Circuit agreed with our arguments that the record fails to establish he “actually and necessarily pleaded that he acted with an intent to defraud or deceive.” According to the Court, the IJ and the BIA merely inferred that Mr. Akinsade acted with a specific intent to defraud and, athough this inference may have been reasonable, it was inadequate to establish removability under the modified categorical approach.
The Court also strongly admonished the attorney from DOJ’s Office of Immigration Litigation (OIL), who stated during oral argument that ICE would be unlikely in this case to exercise prosecutorial discretion under the Morton Memo, because Mr. Akinsade had appealed his removal order and filed a coram nobis petition challenging his criminal conviction. The Second Circuit declared: “We would be troubled if indeed it is the government’s position that petitioners will be penalized for exercising their legitimate rights to pursue their arguments fully.”
A terrific victory for our client and a valuable new precedent in the Second Circuit, which now joins the Third Circuit in finding that an embezzlement conviction under 18 U.S.C. §656 is not necessarily an aggravated felony under INA §101(a)(43)(M)(i). See Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).